The reliance on the social in the field of economy is mirrored in the sphere of cultural production. Literature, music, film and art all draw from the pre-existing works which make up our mental universe. No creative act is strictly individual, relying as it does on the sources and styles of those which preceded it. Extensive legal and theoretical acrobatics have been required to keep this collectivity at bay, but in an era of digital production it is not clear that this will suffice.
Print Capitalism and Authorship: From Sovereign to Public
Literary historian Martha Woodmansee has chronicled how writing was understood as a derivative and collective enterprise during the middle ages and the renaissance. A book was seen as the product of many contributors, of which the writer was only one. Conceptualization of individual authorship, then, was a necessity imposed by the modalities of print capitalism and the need to establish clear property rights.
Prior to the first copyright law in 1710, the Statue of Anne, printing was regulated through a combination of self-policing by the Stationers Company (London publishers) and royal prerogative. The former took the form of a registry of who ‘owned’ specified titles, and members were expected to abide by its rules. The latter was expressed through awards of ‘privileges’, i.e. monopolies, over some books and fields by the crown. These structures were designed to keep peace within the trade and prevent the printing of seditious materials. Copyright law was created to achieve the same ends: to control and regulate dealings amongst publishers, and ensure accountability for that which was printed.
While the registry established rights of infinite duration, the law limited the term of exclusivity. Printers initially claimed a common law right in literary property, proposing that the term provided by copyright law was merely a statutory addition. In 1774 the courts rejected this claim of a perpetual common law right; this established the publishing industry as based on law rather than industry custom. The industry’s pretensions to autonomy having been extinguished, and the sovereignty of the law established, copyright law began develop in correlation with the needs of the industry, encompassing new types of works (maps, music, etc) and granting longer terms of protection.
As industry and the reading public expanded, the justification for its monopoly grants changed. Under the influence of the eighteenth century romantic movement, copyright law began to be presented not as a means for intra-industry regulation but as a mechanism supporting the production of ideas by authors freed from the shackles of patronage. The free market would produce liberated writers, and their works would provide the public with enjoyment, knowledge and enlightenment.
To substantiate this new idea of authorship required that writing be recast as a unique record of the intellect behind it: property resided in the precise form of expression, above and beyond the physical artifact of the book itself and the ideas contained therein. Whilst property in this unique form belonged nominally to the author, it was transferred to the publisher. Publishers provided the means for authors to subsist, ergo, legal support for their needs was a means of supporting authorship. The rhetoric of the ‘romantic author’ provided a sympathetic figure whose creative genius could be mobilized to legitimate the need for a copyright monopoly. This formulation also glossed the inherent conflict between writers and publishers, and the asymmetrical power in their relationship; with rare exceptions, publishers held the whip.
In the US, British Empire, and throughout Europe, this idea that copyright represented a reward for genius or an incentive for the production of knowledge useful to the public became the official rationale for a monopoly grant.
Arcane as it may seem, this notion of authorship underwrites the logic of contemporary copyright law, and its assumptions are deeply implanted both in the functioning of the law and contemporary conceptions of creativity.
Copyright and the Collaboration Dilemma
The discourse was the way to create explicit property rights within the publishing system. But as commercial creativity became more complex with the development of the music, film and later software industries, such a framework risked encumbering business by generating too many rights-holders. Each of these works is obviously collective in manufacture, but allocation of rights to each participant would produce friction in terms of their trade on the market.
This risk has been dealt with by a slight of hand, whereby a corporate principal is ascribed as the creator and the producers are considered as agents of their will, otherwise known as the work for hire doctrine. In other cases this is dealt by a contractual transfer of any rights, as is the case for the recipients of patents in the corporate employment.
Copyright law recognizes only two other modalities of collaboration. A ‘collective work’ is one which contains several works each of which are copyrighted themselves; the US statue offers anthologies and encyclopedia as examples. Joint works on the other hand are ‘prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole’. In this case each author can license the result on a non-exclusive basis and must pay the other(s) their share. While this tallies with the nature of many online productive practices, it creates a massive rights thicket by spreading blocking rights extremely widely. The consequences of giving each participant rights comparable to those of individual authors is a situation of paralysis.
This basic conception of creativity as individual leaves the legal framework ill-equipped to deal with contemporary forms of wide-scale cooperative production. Collectivity is inscribed in both their form and architecture, from the discursive and serial nature of problem solving in forums, to the version control histories of software and wikis. These practices are confronted with a legal framework unable to respond to their needs. This explains why so many have turned to alternative forms of copyright licensing which change copyright's defaults so as to facilitate or even encourage free collaboration, such as the GPL and (later) Creative Commons.
In addition to these artifacts native to the digital context, online activity generates copious amounts of documentary evidence of the collective nature of design and execution in every other field. As creative practices become more explicitly derivative and collaborative, the legal stability of copyright’s categories are being strained past breaking point. Movements in all fields of the arts had foreshadowed these tensions. Practices of montage recycling of footage in cinema, collage, the cut-up in writing, re-photography all reflected the fact that in an age of ubiquitous media, creative reinterpretation would necessarily take the form of recombining, ‘appropriating’ pre-existing elements. Courts struggled incoherently with these challenges, ruling inconsistently and inventing progressively more peculiar distinctions. These practices were clearly not about ‘piracy’, but were in direct contradiction to the claims of original genius of the ‘romantic author’. The result was chaos, but as long as access to the technology was restricted by high entry costs, it effected only a discrete group.
The spread of the personal computer and software for media manipulation in the 1990s, followed by the arrival of high speed domestic connectivity, washed away the final flood wall. Doctrines developed to regulate industrial cultural producers are in crisis, confronted by a public itself now equipped with the tools of production and distribution.